Presidential Appointments To The National Labor Relations Board Are Invalid

In Noel Canning v. National Labor Relations Board (--- F.3d ----, C.A.D.C., January 25, 2013), the United States Court of Appeals considered a challenge to a ruling by the National Labor Relations Board (“NLRB”) on the grounds that the NLRB lacked a quorum because three of its five members had been appointed by the President without Senate approval at a time when the Senate was not actually in an intersession recess.  The court ruled that the Recess Appointments Clause of the United States Constitution allows Recess appointments only during “the Recess,” which does not include intrasession recesses during which actionless, pro forma sessions are held.

Facts

During contract negotiations, Teamsters Local 760 (“Union”) charged Noel Canning, a beverage bottling and distribution company, with violating the National Labor Relations Act (“NLRA”) by refusing to execute an agreement previously reached with the Union.  An administrative law judge (“ALJ”) ruled in favor of the union and the NLRB upheld the ALJ’s ruling.

Noel Canning appealed to the United States Court of Appeals alleging that the NLRB actions were invalid because the NLRB lacked a quorum since three appointments to the five-member board were made by the President without Senate approval.  The appointments were made during a time when the Senate was holding pro forma sessions with no actions for the express purpose of avoiding a “recess,” thereby stopping presidential “recess” appointments. 

Decision

The United States Constitution states that the President’s appointments of Officers of the United States are to be made “with the Advice and Consent of the Senate.”  An exception is the “Recess Appointments Clause,” which reads: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next Session.”  The outcome of this case hinges on the wording of that clause. 

The inclusion of the word “the” in the phrase “the Recess” indicates that the framers were referring to a specific recess when recess appointments were permitted and not just any break between Senate actions, the court said.  The wording suggests that the framers allowed for an auxiliary form of recess appointments to prevent government paralysis during the long periods of that era when Senators were unavailable to provide advice and consent, expressly limiting those appointments to “the Recess.”

It is illogical, the court said, to suggest that this auxiliary method was available during any intrasession break because such an interpretation would allow the President to simply wait until the Senate took an intrasession break to make appointments, thereby avoiding the Constitution’s express provision that appointments include the advice and consent of the Senate.  Therefore, it is apparent that recess appointments are permitted only when the Senate is in “the Recess” in between its sessions.  Since the President’s NLRB appointments were not actually made during an intersession recess, but merely at a time when the Senate was holding pro forma sessions without actually recessing, those appointments were invalid and the NLRB had only two standing members - less than a quorum - when it issued its decision.  The court concluded that the decision was invalid and must be vacated. 

Further, the court considered the definition of the word “happen” in the Recess Appointments Clause, which permits appointments to fill “Vacancies that may happen during the Recess of the Senate.”  Citing dictionaries in use at the time, the court interpreted “happen” to mean “comes to pass,” or only when it first arises.  The NLRB vacancies did not first arise during an intersession recess. 

Since the Senate was not in an intersession recess at the time of the appointments and the vacancies did not first occur during an intersession recess, the President’s appointments to the NLRB were invalid.  The NLRB therefore lacked a quorum at the time of its decision.  Noel Canning’s petition to vacate the NLRB order was granted. 

This ruling puts many if not all recess appointments by the President in question.  For example, President Obama's earlier appointment of Richard Cordray to head the Consumer Financial Protection Bursar is one such appointment.